Worldy Wisdom: Why a pro forma will still ends up in Court
I’m always curious as to any judgement dealing with will kits or proforma wills. I have every suspicion we will see more of these as the years go on.
Recently the Court had to determine what a testator meant in the matter of Rhodes v Rhodes (as Executor of the Estate of Cecil Ronald Rhodes) & Ors  QSC 21. The testator, Cecil Rhodes, had completed a pro forma will and his instructions in relation to the distribution of his residual estate read as follows:
ALL MY WORDLY GOODS TO MY EX WIFE WHO WILL DISTRIBUTE IT TO MY CHILDREN AS SHE SEES FIT
Unsurprisingly, the words used resulted in uncertainty and disagreement between the family.
Cecil’s ex-wife, Rita, argued that she should receive the residuary estate absolutely and that the words expressed were only indicative of an expression of hope that Rita would distribute something to Cecil’s children.
The Court disagreed.
Of the language used, the Court carefully considered the words “who will distribute it to my children” [emphasis added] and the flow on “as she sees fit” both separately and as a whole.
The Court determined that the word “will” used in this context demonstrated an obligation, rather than simply a choice. The Court said:
Cecil’s choice of words, “who will distribute it to my children” (emphasis added), is significant. Those words have an imperative quality. They are inconsistent with a mere indication of purpose or motive for benefiting Rita, indeed they are inconsistent with an intention to benefit Rita at all. The word “will” in this context bespeaks obligation rather than choice. It conveys that distribution is mandatory, so that Rita must distribute the residue to Cecil’s children. (para 27)
Considering the words “as she sees fit“, the Court said:
The notion that the words used here empowered Rita to decide whether she ever “sees fit” to distribute at all ignores the significance of the word “will”. Considered in context that word indicates Cecil was doing more than conferring a mere power upon Rita and rather was conferring a trust power Rita was obliged to execute. The ordinary and natural meaning of the combination of words chosen by Cecil is that the words “as she sees fit” go to when and in what proportions Rita “sees fit” to distribute the estate to Cecil’s children and do not override the mandatory requirement that she “will” distribute. They are unremarkable words in the context of the form of express trust sometimes described as a discretionary trust. (para 30)
I find Cecil’s words bespeak a requirement, not merely a hope, that Rita will distribute his estate to his children. (para 31)
The will was construed to give the residuary estate to Rita subject to a testamentary trust in favour of Cecils’ children.
This case highlights the complexity of language and the use of certain words in will making. Writing your own will is never recommended in any circumstances. It’s an incredibly difficult realm and often one that requires the Court’s direction. Using a pro forma will can be an essential stop gap in certain circumstances; however they should never be relied upon as truly reflective of your wishes. Unfortunately for Cecil’s family, the legal costs in having the Court determine such a genuine application for interpretation would likely be paid from Cecil’s estate. Comparatively, Cecil may have spent a few hundred dollars for a properly drafted will; unfortunately his estate will likely pay tens of thousands of dollars instead.
You can read the case here.
Originally published at micheledavis.com.au on February 28, 2017.